Civil Monetary Penalties

OFAC Enforcement Action: Atradius Trade Credit Insurance, Inc.

This one’s pretty cut and dried… a $343,315 fine for accepting the business of collecting the $5,730,680.33 debt from a company on the SDN List, and for actually successfully collecting $4,043,174.25 of it. The company did not voluntarily self-report, but the two violations were considered a non-egregious case. The resulting settlement was reduced from the $590,282 base penalty.

Here is what OFAC considered in its investigation:

The following were considered aggravating factors:

  • ATCI did not undertake any meaningful analysis or otherwise seek confirmation from OFAC that assignment of the SDN’s debt and acceptance of payment from the Soho Mall Trust was permissible under existing authorizations; and
  • ATCI is a subsidiary of a sophisticated global trade credit insurance and collections conglomerate.

The following were considered mitigating factors:

  • ATCI has not received a penalty notice or Finding of Violation from OFAC in the five years preceding the earliest date of the transactions giving rise to the Apparent Violations; and
  • ATCI voluntarily conducted a full internal review of the underlying facts and circumstances, provided documents from its internal review to OFAC in the course of the investigation, and took voluntary remedial action to address the cause of the Apparent Violations. ATCI also agreed to undertake certain compliance commitments to ensure that its OFAC sanctions compliance program remains strong over the next several years.

and the lesson we should learn:

This enforcement action draws particular attention to transactions related to the assignment of an SDN’s debt and highlights the importance of obtaining a specific license before engaging in activity that is not otherwise authorized.

One curious thing is that ATCI didn’t get credit for the fact that the debt collection may have been licensable: the SDN was in liquidation when ATCI took on the assignment. I know that OFAC has mentioned “could have been licensed” in other cases.

Also interesting is OFAC’s focus on some of these smaller cases. It used to be that the focus was on larger and more egregious patterns of behavior. When you really get down to it, this was a single transaction they got whacked for – maybe because they were a sub of a large firm, they got penalized just to make a point?

Link:

Enforcement Information

OFAC Enforcement Action: PACCAR Inc.

The firm, which is in the truck business, agreed to a $1,709,325 settlement for 63 apparent violations of the Iranian Transactions and Sanctions Regulations (ITSR), which were voluntarily self-disclosed and non-egregious violations. The base penalty is therefore $2,713,214 for selling $5,426,428 worth of products. The violations occurred between October 2013 and February 2015.

Here’s the “what” of what happened:

In June and October 2014, a DAF dealer based in Hamburg, Germany, placed two orders with DAF via its wholly owned subsidiary in Germany (“DAF Germany”) for 51 trucks. Even though the final paperwork associated with these transactions identified the ultimate end-customer as an unnamed party in Russia, the Hamburg-based dealer resold the trucks to a buyer in Iran. A former employee/manager of DAF Germany had, at a minimum, reason to know that the trucks were intended for Iran rather than for Russia. The Hamburg-based dealer initially requested a price quotation from, and then placed an order with, DAF Germany for trucks with particular specifications for an Iranian company located in Iran. The then-employee/manager of DAF Germany informed the Hamburg-based dealer that DAF Germany could not sell trucks destined for Iran. That same day, the Hamburg-based dealer submitted a pricing request for a new order of trucks purportedly destined for a customer or end-user in Russia with virtually identical specifications as the earlier order intended for Iran. Although the new pricing request was submitted on the same day on which DAF Germany refused the Iran-related purchase order and the proposed purchase involved the same types of trucks, with the same specifications, and the same delivery point as those included in the Iran-related purchase order, DAF Germany — including the former employee/manager — failed to conduct an adequate inquiry and processed the order.

Separately, DAF Trucks Frankfurt, a directly owned DAF dealer, received two trucks from DAF in October 2013 that were intended for resale to a company in Germany. After the original buyer cancelled the order, DAF Trucks Frankfurt sold the two trucks to a trader based in the Netherlands, which in turn resold the trucks to two buyers in Iran. DAF’s investigation showed that an employee of DAF Trucks Frankfurt knew or had reason to know that the two trucks sold to the Netherlands-based trader were intended for resale to buyers in Iran. Among other things, the Netherlands-based trader sent drafts of its invoices, which referenced the buyers in Iran, to a DAF Trucks Frankfurt employee.

Additionally, in June 2014, DAF sold 10 trucks to an authorized DAF sales dealer located in Sofia, Bulgaria. The Bulgarian authorized dealer subsequently sold and delivered the 10 DAF trucks to an affiliated rental company, which in turn sold the 10 trucks to a buyer in Iran. The Bulgarian authorized dealer’s parent company disclosed that a used truck sales manager employed by DAF introduced that authorized dealer to the Iranian buyers of the 10 trucks and knew or should have known that the trucks were intended for Iran prior to introducing the parties. A DAF investigation found that the sales manager ignored warning signs indicating the trucks were destined for Iran and failed to take reasonable steps in response to the warnings.

And OFAC considered the following factors in determining the penalty:

OFAC considered the following to be aggravating factors:

  1. DAF personnel — specifically, employees in DAF Germany and DAF Trucks Frankfurt and a DAF used trucks sales manager — failed to exercise a minimal degree of caution or care when they ignored warning signs regarding potential sales involving OFAC-sanctioned countries and allowed goods to be sold to customers that they knew or had reason to know intended to re-sell the goods to buyers in Iran;
  2. in each case, a DAF employee had knowledge or reason to know the goods were being re-sold to buyers in Iran;
  3. DAF’s exportation of goods from Germany to Iran conferred millions of dollars in economic benefits on Iran; and
  4. PACCAR, DAF’s parent company, is a large sophisticated entity that engages extensively in international business.

OFAC considered the following to be mitigating factors:

  1. neither PACCAR nor DAF have received a penalty notice or Finding of Violation from OFAC in the five years preceding the earliest date of the transactions giving rise to the apparent violations;
  2. at the time of the apparent violations, DAF possessed and maintained a trade sanctions compliance program that included contractual prohibitions on dealers and service partners re-selling DAF products in violation of U.S. trade sanctions;
  3. upon learning of the apparent violations, DAF took remedial action by conducting an internal investigation regarding this matter; terminating employees involved in some of the apparent violations; cancelling delivery of 20 trucks that were part of an order for a customer that appeared to have allowed other DAF trucks to be resold to buyers in Iran; providing in-person compliance training to DAF subsidiaries on an annual basis from 2015 onward; and implementing enhanced trade compliance controls — including a policy preventing direct sales agreements except for sales to final end customers — in an effort to prevent similar apparent violations from recurring; and
  4. PACCAR and DAF cooperated during the course of OFAC’s investigation, including by submitting a detailed voluntary self- disclosure; thoroughly and promptly responding to OFAC’s requests for information and by entering into a tolling agreement to extend the statute of limitations.

Some details on PACCAR’s remedial efforts:

Additionally, PACCAR and DAF have confirmed to OFAC that they have terminated the apparently violative conduct and have taken the following steps to minimize the risk of recurrence of similar conduct in the future:

• DAF hired a full-time Compliance Director who reports to DAF’s General Counsel and Chief Compliance Officer, and is responsible for developing compliance policies and procedures, advising employees about compliance, monitoring internal reports of compliance concerns and ensuring appropriate follow-up, and assisting with compliance investigations and audits;

• DAF updated its EU Trade Restrictions Compliance Manual to strengthen controls on dealer sales that might violate U.S. or other applicable trade restrictions, including by requiring more thorough end-customer and transaction due diligence;

• DAF implemented a policy that only allows direct sales agreements for sales to final end- customers and imposed a contractual ban on the resale of new trucks acquired under a direct sales agreement in the absence of an approved exception;

• DAF sent a letter to all dealers in its dealer network reminding them of their obligations to comply with U.S. and other trade sanctions and received certifications from each of its dealers regarding their compliance with all applicable trade sanctions; and

• DAF has made trade sanctions compliance training an annual requirement and has conducted such trainings at DAF’s headquarters and subsidiaries since 2016.

And the lesson you should learn from this:

This enforcement actions highlights the benefits U.S. companies can realize in conducting sanctions-related training and in taking appropriate steps to audit and monitor foreign subsidiaries for OFAC compliance. U.S. parent companies can mitigate risk to sanctions exposure by proactively establishing and enforcing a robust sanctions compliance program. Foreign subsidiaries of U.S. companies are subject to the ITSR, and their U.S. parent companies may face potential exposure to civil monetary penalties for the actions of such entities.

Link:

Enforcement Information

Individual Liability! OCC Enforcement Action against former Rabobank General Counsel

FOR IMMEDIATE RELEASE
July 23, 2019		 Contact: Bryan Hubbard
(202) 649-6870
 

OCC Issues Consent Order of Prohibition and $50,000 Civil Money Penalty Against Former General Counsel of Rabobank N.A.

WASHINGTON—The Office of the Comptroller of the Currency (OCC) today announced the issuance of a consent order of prohibition and $50,000 civil money penalty against Daniel Weiss, the former General Counsel of Rabobank, N.A., Roseville, Calif. (Bank).

The consent order prohibits Mr. Weiss from participating in the affairs of any federally insured depository institution and assesses a $50,000 civil money penalty for violations of law and unsafe or unsound practices alleged in the notice of charges (notice) issued on March 25, 2019.

The notice alleges that Daniel Weiss, as General Counsel of the Bank, participated in the continuous concealment of a third party report assessing the Bank’s Bank Secrecy Act program from the OCC in violation of 12 USC 481 and made false statements to the OCC in violation of 18 USC 1001.

On February 7, 2018, the Bank pled guilty to conspiracy to obstruct an OCC examination in violation of 18 USC 371 and 1517 in the U.S. District Court in the Southern District of California, and agreed to pay a forfeiture in the amount of $368,701,259 and a civil money penalty to the OCC in the amount of $50 million, based in part on the violation of 12 USC 481.

Links:

OCC Notice

Consent Order

Notice of Charges

OFAC Enforcement Action: Cubasphere Inc (and an individual)

An Individual and Cubasphere Inc. Settle Potential Civil Liability for Apparent Violations of the Cuban Assets Control Regulations: An individual (the “Individual”), as well as Cubasphere Inc. (“Cubasphere”), on whose behalf the Individual also acted, have agreed to pay $40,320 to settle their potential civil liability for apparent violations of the Cuban Assets Control Regulations, 31 C.F.R. part 515 (CACR). The Individual and Cubasphere appear to have violated the CACR by engaging in unauthorized travel-related transactions to and within Cuba.

Specifically, the Individual and Cubasphere appear to have dealt in property in which Cuba or Cuban nationals had an interest in violation of § 515.201(b)(1) of the CACR by engaging in unauthorized Cuba travel-related transactions and by providing unauthorized Cuba travel services to 104 persons on four separate trips from on or about December 30, 2013 to on or about February 22, 2014. While acting as full-service tour operators, the Individual and Cubasphere received direct payments from groups and individuals for Cuba travel-related transactions, and handled itinerary planning, such as making reservations and payments for air travel, hotels, meals, and transportation within Cuba. The Individual and Cubasphere also procured Cuban visas and cover letters for travelers from U.S. religious organizations that cited the general license in § 515.566 of the CACR. However, the itineraries from the U.S. religious organizations did not match the itineraries that the Individual and Cubasphere offered their customers. The actual itineraries for the Cuba trips focused primarily on sightseeing and tourism activities rather than humanitarian or religious activities. Through correspondence with OFAC, the Individual and Cubasphere had prior notice that their conduct constituted, or likely constituted, apparent violations of the CACR, yet the Individual and Cubasphere continued to organize, plan, and carry out unauthorized Cuba travel-related transactions for more than a year.

The Individual and Cubasphere also took steps to urge clients to conceal their travel to, and unauthorized activities in, Cuba. The Individual and Cubasphere routinely suggested in writing that the customers should minimize their interactions with U.S. government officials upon their return to the United States, ensure that they have no receipts or schedules from their trip, and give false statements if they were asked about their activities in Cuba.

The base civil monetary penalty was $112,000, because the violations were not voluntarily self-disclosed, and occurred subsequent to agency notice.

Here is how OFAC arrived at the final settlement amount:

OFAC considered the following to be aggravating factors:

(1) the Individual appears to have willfully engaged in the apparent violations involving Cuba with knowledge that such transactions likely constituted violations of the CACR;

(2) the Individual appears to have knowingly facilitated unauthorized travel to Cuba by other persons that appears to have violated the CACR;

(3) given the seriousness of the apparent violations, the publicity given to apparent violations by the Individual, and the fact that the conduct would likely not have been licensed under then-existing OFAC licensing policy, the apparent violations resulted in significant harm to the CACR sanctions programs;

(4) Cubasphere did not maintain adequate OFAC sanctions compliance procedures at the time of the apparent violations; and

(5) neither the Individual nor Cubasphere appear to have taken any remedial actions in response to the apparent violations.

OFAC determined there were mitigating factors:

(1) neither the Individual nor Cubasphere has any prior sanctions history with OFAC, including receipt of a penalty notice or Finding of Violation in the five years preceding the earliest date of the apparent violations;

(2) the Individual is a natural person and the president of Cubasphere, a relatively small company with few employees; and

(3) the Individual cooperated with OFAC during post-investigation proceedings, including entering into a tolling agreement with OFAC.

And the lesson to be learned:

This enforcement action highlights the importance of compliance with the CACR for all travelers and travel service providers subject to the jurisdiction of the United States. OFAC continues to fully enforce the CACR, including restrictions on U.S. person travel-related transactions with respect to Cuba, which are generally prohibited under § 515.201(b)(1) and §§ 515.415 and 515.420 of the CACR, except as authorized by OFAC. Travel-related transactions to, from, or involving Cuba, that do not meet the full criteria and conditions of an OFAC specific or general license are prohibited. For more information regarding OFAC regulations, please go to: http://www.treasury.gov/ofac.

Link:

OFAC Enforcement Information

OFAC Enforcement Action: Hotelbeds USA

Hotelbeds USA, Inc. Settles Potential Civil Liability for Apparent Violations of the Cuba Assets Control Regulations, 31 C.F.R. part 515: Hotelbeds USA, Inc. (“Hotelbeds USA”), incorporated in Florida, is a U.S. subsidiary of Hotelbeds Group (“Hotelbeds”), headquartered in Mallorca, Spain.

Hotelbeds USA has agreed to pay $222,705 to settle potential civil liability for assisting 703 persons with Cuba-related travel service prior to agency notice in apparent violation of the Cuba Assets Control Regulations, 31 C.F.R. part 515 (CACR). Specifically, between on or about December 2011 and on or about June 2014, Hotelbeds USA provided unauthorized Cuba-related travel services to 703 non-U.S. persons to or through the United States in violation of § 515.201 of the CACR.

Hotelbeds USA knowingly sold hotel accommodations and gave its clients specific instructions to direct their payments for the Cuba-related transactions to an account in Spain, from which Hotelbeds USA was subsequently reimbursed.

Various Hotelbeds USA employees and supervisors appear to have had actual knowledge of, and participated in, the conduct that led to the apparent violations. The Cuba-related travel services occurred in part because of a reported misunderstanding and misinterpretation of the CACR that developed throughout Hotelbeds USA in which its personnel believed Hotelbeds USA could engage in Cuba-related transactions if the bookings involved only non-U.S. clients and payments were made to non-U.S. bank accounts. These same personnel were responsible for issuing invoices or sending emails that included disclaimers that payments for any Cuba-related services should not be sent to Hotelbeds USA or the United States. These personnel were also responsible for the process in which customers sent Cuba-related payments to Spain, and subsequently had revenues from such payments credited to Hotelbeds USA.

During the time the apparent violations were occurring, Hotelbeds USA personnel, including a senior manager, were aware that a U.S. financial institution had blocked a payment related to a Cuba-travel transaction and that OFAC had denied a specific license application filed by Hotelbeds USA seeking the unblocking of funds related to an unauthorized Cuba-travel transaction. The specific license denial generally outlined the CACR prohibitions and specifically articulated the CACR prohibitions regarding Hotelbeds USA’s specific license request.

Hotelbeds did not voluntarily self-disclose the violations, which occurred prior to agency notice. The base penalty is $353,500.

Here is how OFAC arrived at the final settlement amount:

OFAC considered the following to be aggravating factors:

1. Various Hotelbeds USA employees, including supervisory or managerial staff, were aware or had reason to know of, or participated in, the conduct that led to the apparent violations;

2. By processing the transactions constituting the apparent violations, Hotelbeds USA caused harm to the sanctions program objectives of the CACR;

3. Hotelbeds USA is a large and commercially sophisticated company; and

4. Despite being a large international travel service provider, Hotelbeds USA only had an informal compliance program that does not appear to have been commensurate with the risks associated with providing international travel services.

OFAC considered the following to be mitigating factors:

1. The Cuba-related transactions constituting the apparent violations appear to represent less than one percent of Hotelbeds USA’s overall business over the same period of time;

2. Hotelbeds USA has not been the subject of an OFAC penalty notice or finding of violation in the five years preceding the earliest date of the transactions giving rise to the apparent violations;

3. Hotelbeds USA took significant remedial action in response to the apparent violations, including by:

a. implementing an enhanced third-party IT solution with a sanctions screening tool;

b. dedicating additional resources to better ensure compliance with applicable sanctions laws; and

c. hiring and training additional compliance personnel; and

4. Hotelbeds USA provided substantial cooperation to OFAC by conducting an extensive internal investigation to determine the extent of the apparent violations at issue, producing records and information to OFAC in a clear and organized fashion, responding in a timely and efficient manner to all follow-up requests for information, and tolling the statute of limitation for 1,043 days.

And the lesson to be learned:

This enforcement action highlights the importance for both U.S. companies and foreign parents of U.S. subsidiaries to evaluate, verify, and audit existing compliance measures. U.S. companies and foreign parents of U.S. subsidiaries are encouraged to implement evolving and dynamic sanctions compliance programs that are commensurate with their sanctions risk, particularly those operating in the Cuba travel industry. U.S. companies and foreign parents of U.S. subsidiaries engaging in Cuba travel-related transactions should take note of and respond accordingly to sanctions-related warning signs, such as payments that are blocked or rejected by financial institutions for compliance or economic and trade sanctions purposes.

Link:

OFAC Enforcement Information

OFAC Enforcement Action: Expedia Group

Expedia Group, Inc. (“Expedia”) Settles Potential Civil Liability for Apparent Violations of the Cuban Assets Control Regulations: Expedia Group Inc., headquartered in Bellevue, Washington, on behalf of itself and its subsidiaries worldwide, has agreed to pay $325,406 to settle potential civil liability for assisting 2,221 persons with Cuba-related travel services prior to agency notice in apparent violation of the Cuban Assets Control Regulations, 31 C.F.R. part 515 (CACR). Specifically, between on or about April 22, 2011 and on or about October 16, 2014, Expedia dealt in property or interests in property of Cuba or Cuban nationals by assisting 2,221 persons — some of whom were Cuban nationals — with travel or travel-related services for travel within Cuba or between Cuba and locations outside the United States.

The apparent violations occurred because certain Expedia foreign subsidiaries lacked an understanding of and familiarity with U.S. economic sanctions laws and Expedia employees overlooked particular aspects of Expedia’s business that presented risks of noncompliance with sanctions. Specifically, electronically booked travel resulted from failures or gaps in Expedia’s technical implementations and other measures to avoid such apparent violations. With respect to at least one foreign subsidiary, Expedia failed to inform the subsidiary until approximately 15 months after Expedia acquired the subsidiary that it was subject to U.S. jurisdiction and law. Expedia was slow to integrate the subsidiary into the Expedia corporate family, including with respect to compliance with U.S. sanctions, and the subsidiary continued operating independently during the integration period.

The base penalty for the self-disclosed violations was $556,250. The Enforcement Information does not say if the violations were egregious, but notes that they occurred prior to agency notice. As explained in Monday’s post, the rules for Cuba-related penalties are different

The mitigating factors playing into the final penalty:

1. Expedia failed to exercise a minimal degree of caution or care in avoiding the conduct that led to the apparent violations. Moreover, based on the number of apparent violations, the length of time over which the apparent violations occurred, and the number of Expedia entities involved in the apparent violations, the apparent violations appear to have resulted from a pattern or practice of conduct.

2. The apparent violations harmed the sanctions program objectives of the CACR, based on the number of apparent violations and the length of time over which the apparent violations occurred.

3. Expedia is a sophisticated international travel service provider, providing global travel services to customers located worldwide.

And the mitigating factors:

1. Expedia has not received a penalty notice or Finding of Violation from OFAC in the five years preceding the earliest transaction giving rise to the apparent violations.

2. After discovering the apparent violations, Expedia implemented significant remedial measures to strengthen its U.S. economic sanctions compliance program throughout the Expedia corporate family, including domestic and foreign direct and indirect subsidiaries.

3. Expedia cooperated with OFAC’s investigation by submitting data analytics associated with the apparent violations, responding to OFAC’s requests for additional information, and entering to multiple tolling agreements.

And these were Expedia’s remediation steps:

Consistent with the settlement agreement with OFAC, Expedia has committed to enhancing its compliance procedures by ensuring that Expedia: (1) has a management team in place that is committed to compliance; (2) conducts regular risk assessments to ensure that Expedia’s internal controls appropriately mitigate its sanctions-related risks; (3) conducts regular testing and audits; and (4) provides ongoing sanctions compliance training throughout the Expedia corporate family. Additionally, Expedia has steadily increased its resources dedicated to compliance with U.S. sanctions, resulting in substantially more robust staffing and resources corporate-wide, and taken measures to increase compliance with U.S. sanctions, including enhanced screening methods and implementation of automated software restrictions.

And the lesson to be learned:

This case illustrates the benefits persons subject to the jurisdiction of the United States – including, with respect to OFAC’s Cuba sanctions, entities owned or controlled by U.S. persons – can realize by implementing corporate-wide compliance measures commensurate with their sanctions risks. U.S. companies can mitigate risk by conducting sanctions-related due diligence both prior and subsequent to mergers and acquisitions, and taking appropriate steps to audit, monitor, train, and verify newly acquired subsidiaries for OFAC compliance. U.S. foreign subsidiaries are subject to the CACR, and U.S. person parent companies may face potential exposure to civil monetary penalties vis-à-vis the actions of their foreign subsidiaries. Foreign acquisitions can pose unique sanctions risks, to which a U.S. person parent company should be alert at all stages of its relationship with the subsidiary.

Link:

OFAC Enforcement Information

The rules for Cuba-related CMPs are different.

From the Cubasphere settlement:

The Cuba Penalty Schedule, 68 Fed. Reg. 4429 (Jan. 29, 2003), sets a $2,000 penalty for the provision of travel services occurring “prior to agency notice,” plus $500 per person assisted, and a $15,000 penalty for the provision of travel services occurring “subsequent to agency notice,” plus $500 per person assisted.